IT LOOKS as if the Government is about to give the tobacco companies a leg to stand on in their objections to plain packaging.

If the Government cops another hiding in the High Court it will be entirely of its own making. The successful refugee challenge, remember, related to Howard-era legislation. If the tobacco companies have a win, or a partial win, it will be in relation to Gillard Government legislation...

Its legislation gives the Minister huge power to make regulations to fix up any unintended consequences of the plain-packaging legislation as they affect the operation of the Trademark legislation.

It is like a catch-all repair mechanism for minority government fearful that it would not get parliamentary approval to legislate to fix any unintended consequences – particularly an unintended consequence of leaving the Government exposed to a successful compensation claim.

But changes it proposes to the regulation-making power in the Trademarks Act looks to me to self-evidently unconstitutional.

Now here comes the technical bit, but bear with me.

The new legislation provides the Minister with a sweeping regulation-making power. It says, “Regulations made for the purposes of [giving effect to the plain-packaging legislation]: (a) may be INCONSISTENT with this Act; and (b) prevail over this Act . . . to the extent of any inconsistency.

But basic constitutional law tells you that a Minister cannot make regulations inconsistent with an Act of Parliament. The Minister, like everyone else, must obey the law. Further, it is beyond the legislative power of the Commonwealth to delegate its power to the Executive so that the Minister in effect is legislating.

On first reading, I thought it was a misprint. Usually, the regulation-making power is described as to be NOT INCONSISTENT with the Act.

It will not take the High Court long to knock this one on the head and declare the legislation invalid or at the very least declare invalid any regulation the Minister purports to make that is inconsistent with any law of the Commonwealth Parliament.

Who drafted this stuff? Why is the Government risking another humiliation in the High Court, especially at the hands of the tobacco companies, whose arguments against the substance of plain-packaging are otherwise specious, contradictory, disingenuous and an affront to public health...